Category Archives: Editorials/Opinion

“Texas Monthly” Explores Official Misconduct in Discussion on Wrongful Conviction

A candid discussion in the June issue of Texas Monthly on the subject of wrongful conviction here  engaged  key players in Texas criminal justice, and included an exploration of options available to reduce government misconduct, a troubling contributor to many wrongful convictions. Of special note, these came  from those within the system who are troubled by colleagues who have not followed the rules or the ethical spirit of the law.

Kelly Siegler, a special prosecutor who lives in Houston said, “…introduce a law that says when a prosecutor commits a crime like tampering with evidence, tampering with a witness, or official oppression…there is no statute of limitations.”

Art Acevedo, Chief of the Austin Police Department since 2007, agreed. “The statute should start running on the day that we discover that misconduct. People should know that they’ll have to look over their shoulders for the rest of their lives.”

“It drives me nuts that I have 180 days [from the time of misconduct to discipline a police officer],” he added. “That’s all I have. One hundred and eighty days. That’s nothing. There should not be a statute of limitations when it comes to violating the public trust. And cops will hate me for saying that. Prosecutors will hate me for saying that. But in a democracy, if our criminal justice system doesn’t work, we are in deep trouble. And it starts with those consequences.”

While support for immunity for prosecutors from frivolous lawsuits remains,  prosecutors and police are joining ranks with those who believe governmental immunity is never absolute in the face of intentional misconduct.

The evolution in opinion on government misconduct in Texas comes in the wake of the state’s high number of exonerations and could be a precursor for similar thinking in other states.

Wrongful Convictions in Singapore: A General Survey of Risk Factors

The above is the title of an article by Chen Siyuan and Eunice Chen; offering a deeper insight into the peculiar nature of wrongful convictions in Singapore. Given the endemic nature of the wrongful conviction phenomena in the ‘West’, particularly, in the United States, United Kingdom and much of mainland ‘Europe’;  the article  cautiously celebrates the Singaporean legal system. The abstract reads:

‘This article seeks to raise awareness about the potentials for wrongful convictions in Singapore by analysing the factors commonly identified as contributing towards wrongful convictions in other jurisdictions, including institutional failures and suspect evidence. It also considers whether the social conditions in Singapore are favourable to discovering and publicising wrongful convictions. The authors come to the conclusion that Singapore does well on a number of fronts and no sweeping reforms are necessary. However, there are areas of risk, viz the excessive focus on crime control rather than due process , which requires some tweaking of the system’.  Read full article.

It is the authors’ contention that Singapore is largely immune from the viral nature of wrongful convictions as we know them in Europe and America. That is thumps up to Singapore’s legal system, however, the caveat they have identified in their study, will require much more than tweaking of the system, but will additionally require robust vigilance. As the dictum goes, external vigilance is the  price of liberty. The article makes sense.

Nigeria, Forensic Science and Human Rights Violations

The science of forensics, is yet to take root in Nigeria; yet crime has not only gone hi-tech, but sophisticated and organised.  If the Nigerian police force is to break grounds and push its boundaries of investigation, it must develop expertise in forensics. There seem to be no concerted effort by government to develop this line of technique in crime investigation, despite the obvious good it will do to accused persons, and those innocently and wrongfully convicted.

Since the 201o visit from the US by police detective Charles Massucci and Anthropology Professor Erin Kimmerle, it is uncertain how far and how seriously the Nigerian authorities have viewed their work to teach forensic science; and make it part of police training and investigation technique. It is suggested here that given the rate of extra-judicial killings and unresolved high profile crimes –  like murder and kidnapping – in Nigeria, it is imperative that, the Nigerian Police College review its curriculum, with a view to making the study of forensic science mandatory for all police officer going through training.

As Prof. Kimmerle observed then (the situation has since deteriorated) ‘In the past two years, there have been more than 1,000 extra-judicial killings of suspects, innocent civilians, multinational oil workers and politicians, by the police, the military forces, vigilante groups and armed militants in various parts of Nigeria.  All of judicial reform is based on forensic sciences. What good is law if you cannot enforce it’ Read report of their 2010 tour of Nigeria here.

Going forward, Nigeria seriously need to reform its police force, the prison system and the judiciary to bring it in line with internationally acceptable standard. The National Human Rights Commission and other oversight agencies of government, must play leading roles in ensuring this comes to fruition.

Compensation is What will Bring to ‘Closure’, the Travails of those Wrongfully Convicted

The subject of compensating wrongfully convicted persons, or persons who have suffered severe miscarriages of justice, will continue to define the work, and indeed, the success of the innocence movement. This is because, once public authorities are made to pay heftily, for their omissions, commissions – and sometimes glaring oversight and negligence – it will leave them in no doubt, that they either have to sit up and do a thorough job, or get slammed with huge monetary compensation for victims.

That is exactly what a Canadian, Romeo Phillion has just done, suing the Ontario government in Canada. After spending 32 odd years behind bars – for a murder he was later acquitted of – Romeo is believed to have served more prison time than any other wrongfully convicted person in Canada. He is suing for $14million. Read report of his odyssey in search of justice and compensation by Globalpost.

The morale here is that, cases such as these, drive home the point that public institutions must be alive to their responsibilities and act judiciously and judicially, in the prosecution of accused persons. Systems, procedures and checks must be in place every step of the way, even after conviction, for public authorities to continue to receive and consider evidence with an open mind; deal with new evidence with all sense of responsibility. The life and liberty of individuals are at stake here. As Romeo himself lamented ‘I did’nt do 32 years for nothing. I lost my freedom. Somebody’s got to pay for that’. Yes indeed,  somebody’s got to pay!

Precedent-setting Ruling: Texas Supreme Court Orders Compensation in Non-DNA Case

Billy Frederick Allen spent 26 years in prison for murder before his conviction was overturned, but not with gold-standard DNA proof of his innocence.  Two Texas courts had agreed his conviction shouldn’t stand. A Texas Court of Appeals reversed  it based on ineffective counsel. A lower court had ruled that the evidence against him was insufficient for a reasonable jury to convict him. But the state’s Comptroller had resisted paying compensation saying that Allen had not proven his innocence. On Friday, in a precedent-setting unanimous decision, the Continue reading

The Intersection Between Innocence, Expert Witness and Religion:The Case of Rev. Gordon MacRae

The role of expert witnesses in criminal prosecution remain pivotal, to the fair dispensation of justice.  The testimony of an expert might actually be the linchpin, in tilting the decision to convict or acquit an accused person. The real question therefore is, when is an expert not an expert?  How much weight, or probative value, should a judge and/or jury place on the expert testimony of an ‘acclaimed expert’?

We may never be able to know the number of cases or accused persons that have been languishing in prison; who’s conviction(s) were solely reliant on expert testimony that were never really challenged.  Instances like these, remain fertile grounds for defense counsel to truly engage in the ‘battle of the experts’. The quality of legal representation,  the high cost of litigation, and of securing the right experts poses challenges for accused persons and counsel. Rev. Gordon MacRae’s conviction, it seems, appears to harbor some of those lingering doubts.  For a full analysis of the peculiar facts of his case, read article entitled: ‘How Psychotherapists helped send an innocent priest to prison’

The case dwells on the professional and care responsibilities of persons placed in a position of trust; how those responsibilities are discharged; the vulnerability of the care-giver and the carer, especially when it bothers on religion and faith. All of these however must be read against the avalanche of cases involving priest and the laity in the catholic church. Still, the issues in the Rev. Gordon MacRae case, are troubling enough to raise legal and procedural concerns. For one, the psychotherapist’s professional conduct and expertise remain open-ended to further probing questions. For a conviction to be safe, ‘we must clear all shred of doubts’; that is why the burden is ‘primarily’ placed on the prosecution, and the standard of proof is set at a very high bar.

Reflections on System Resistance to Innocence Part II

In a blog post that appeared on March 14, 2012 entitled Bryant ‘Rico’ Gaines to Walk Free Today in Ohio:  Reflections on System Resistance to Innocence (Blog Post), I expressed frustration over how the criminal justice system in Cincinnati reacted to a post-conviction claim of innocence, in the context of a specific case, in a way that I felt did not comport with a prosecutor’s duty to search for truth and ‘do justice.’

After the Blog Post was published, I heard that at least one member of the Prosecutor’s Office was upset because he or she believed that the Blog Post contained some inaccurate facts.  As a result, I invited the Prosecutor or his representative to respond to the Blog Post in the comment section and asked them to specifically address any mistakes I had made so that we could flesh them out through discussion.

I later received this 10-page letter dated April 3, 2012 (‘the Letter’).  After receiving the Letter, representatives of the Prosecutor’s Office confirmed that it was intended as a public response to the Blog Post and encouraged me to post it in my blog, which I have done above.  [Note:  The Letter responded to my Blog Post by using the names of the various actors in the case.  I did not use names in the original Blog Post because I see this as an academic discussion about the criminal justice system broadly rather than a discussion that is personal in nature.  Therefore, I have redacted most names from the Letter.]

My response to the Letter:

I.  Global Comments

A.   Prosecutorial Tunnel Vision and Resistance to Innocence Claims

First, I would like to clarify the point of my Blog Post.  I intended to explore the concept of prosecutorial tunnel vision in post-conviction cases and to allow blog readers to contrast the reaction of the Prosecutor’s Office when presented with post-conviction evidence of Gaines’ potential innocence with how police and prosecutors have reacted in other similar cases I have celebrated on the blog, such as in the articles herehereherehereherehere, and here.

Specifically, in the Blog Post, I pointed out examples of prosecutorial behavior Continue reading

Wrongful Conviction Reminiscences of an Australian High Court Judge

I blogged recently about the awesome role Judges play in the dispensation of justice. Retired Australian High Court Judge Michael Kirby has just reiterated and properly contextualised it, with respect to wrongful convictions.  Drawing on his experiences in the bench, particularly with the wrongful conviction of Andrew Mallard. He addressed these issues along with others germane to the fair dispensation of justice. The occasion was about his experiences at the bench between 1996 to 2009 at Melbourne RMIT university. Read 9news reportage of his lecture here

He touched on the quality of legal training; the public perception of the apolitical nature of judges; the divide between conservative and liberal judges. And of course,  hinted of his ‘regrets’ on the Andrew Mallard case. He said ‘Maybe if I’d paid a little more attention, may be if I’d seen some of these arguments (sooner)…. he wouldn’t have had to spend a decade in prison; its something that troubles the mind’.  However hard we deny it, pretend it doesn’t exist or the system can not possibly have leakages, there still remain the real possibility of it happening, no matter the jurisdiction. We must continue to work at it with an open mind. We must come to terms with it. I commend Justice Michael Kirby’s ‘statement of regret’ a fortiori to prosecutors, police officers and lawyers generally.

Tough-on-Crime Prosecutor Fights for Job After Resisting DNA Testing

In dueling commentaries in the Austin (TX) newspaper The Statesman, Williamson County District Attorney John Bradley here and John Raley (eight-year pro bono attorney on the Innocence Project team that represented Michael Morton) here, are giving voters two versions of why Michael Morton spent an extra 2,400 days in prison for a crime he did not commit. At stake is an election in which Bradley is struggling to keep his job. Bradley, who has been a popular tough-on-crime prosecutor in Texas for ten years, is trying to refocus the race on anything but the issue that is dominating it: His long record of resisting a second look at the conviction of Michael Morton.

For those who have observed prosecutorial resistance to post-conviction DNA testing that eventually proved a wrongful conviction, the story is tragically familiar. Continue reading

Nigeria:Blessing Effiong Must Regain her Freedom Now!

Following on the heels of the Patrick Obinna Okoroafor saga in Imo state, a fledgling situation is emerging in Lagos, of the detention of a minor for over 4years in police custody. Miss. Blessing Effiong was 16 when she was taken into police custody following disagreements, arising from the purchase of a mobile phone transaction that had gone awry. She claimed she was 16, but the police would have none of that. Not that they had any proof, or evidence to the contrary. Still, they proceeded to keep her in detention despite entreaties, pleadings and complaints from her guardian. She was never charged to court. She is awaiting trial. Read report here 

This speaks volume about the nature of the workings of the Nigerian police force; but I am more worried about the involvement and the role played by the ministry of justice, and indeed, the Office of the Lagos state Public Defender. The Lagos state Office of the Public Defender is reputed to be doing a good job, supplementing at the state level, the work of the Nigerian legal aid council. For both arms of the justice delivery system to have simultaneously failed Miss. Blessing Effiong leaves no one in doubt about the accuracy and veracity of the numerous independent reports, of the state of decay within the system of administration of justice in Nigeria. In the Patrick Obinna Okoroafor case, it was the concerted efforts of Amnesty International, along with some local NGOs that finally ensured justice was done.

The Attorney General and Commissioner for Justice Ade Ipaye is a well respected Lagos lawyer and academician. His office, working in tandem with the Office of the Lagos state Public Defender should do the needful and ensure Miss Blessing Effiong does not remain in detention a day longer than necessary. That, of course, should be followed by an apology and a serious impact assessment of the ministry, and the Office of the Lagos state Public Defender. It is also about time that Lagos state begin to engender and implement legal reforms that will truly deliver justice. I trust the Attorney General will take the lead and prioritise this, within his tenure of office.

Wrongful Conviction Also Victimizes Victims

Convicted murderer Charles Wilhite has an unusual advocate: the niece of murder victim, Alberto Rodriguez. Marialyn—who requested that the Boston Globe not reveal her last name due to safety concerns—rallied in support of Wilhite on Saturday, May 5, 2012, in Springfield, Massachusetts, because she believes Wilhite was wrongfully convicted of killing her uncle.

As reported here, a key witness in the trial now claims that a Springfield detective and the assistant district attorney pressured his testimony. The witness has recanted his identification of Wilhite as the killer. A decision on whether or not his original testimony will stand is expected today from Hampden Superior Court Judge Peter A. Velis. Continue reading

The Robert Dewey Exoneration and Praise for the Colorado Attorney General’s Office…

Colorado’s wrongful conviction of Robert Dewey holds lessons

By Jason Kreag of the Innocence Project:

NEW YORK  —  During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn’t commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, “I’d hop on and ride in my mind.”

Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general’s office and the Mesa County district attorney’s office not been willing to work with the Innocence Project and Dewey’s long-time counsel, Danyel Joffe, to reopen its investigation of the crime.

Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim’s blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey’s shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.

We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and Continue reading

Public Records Access Laws at the Foundation of Innocence Work, Democracy…

I’ve dealt with public records access laws my entire career.  As a prosecutor, I had to respond to public records request from news media from time to time (or more accurately, as I was taught,I had to come up with some reasonable-sounding explanation as to how the case might still be considered “open” so we wouldn’t have to turn over the records).

And I’ve sent out my fair share of public records request letters over the past decade while doing post-conviction innocence work for the Ohio Innocence Project.

But at no time in my career have I better understood or appreciated the deep importance that public record access laws have on our system than right now.  Two things have brought the importance of these laws to the forefront in the past year or two. Continue reading

Is it ever Possible to Undo the Damage Wrought by Wrongful Conviction?

Would you prefer to be declared ‘not guilty’ rather than being ‘factually innocent’? Before you rush to judgement, there is a marked difference between both terms beyond semantics. Assistant Professor Christopher Sherrin of the University of Western Ontario, Canada successfully engaged with the differences and nuances of both terms in his article entitled – ‘Undoing the damage of wrongful convictions’. In Canada, it appears the best an erroneously accused person can hope for is an acquittal.

He opines that: ‘The primary concern has been that by declaring some people more than not guilty, we would diminish the verdicts given to the remaining acquitted. Not guilty for them would come to mean just not proven to be guilty, and thus probably guilty’. He however concludes that: ‘The real debate should focus not on whether we should declare innocence, but on how we should most wisely do so, in order to offer all innocent accused a fair chance at leaving their erroneous prosecution truly in the past’. Read fuller analysis herehttp://canadian-lawyers.ca/Understand-Your-Legal-Issue/Criminal-Law/Undoing-the-Damage-of-Wrongful-Convictions.html

Blood Spatter — Evidence?

Well … you knew that sooner or later we’d get around to “blood spatter”.  This is also sometimes called “blood pattern analysis” (BPA).  As the name implies, BPA is the analysis of patterns made by blood that has been expelled from the body by a violent act – stabbing, shooting, beating.  These patterns can be used to help reconstruct the violent event, and can provide information about type of injury sustained, movement of a victim, angle of a shooting, location of attack, etc.  Unfortunately, BPA is one of the forensic disciplines least based upon real science.  It has evolved from a collection of anecdotal and empirical observations that have resulted in potentially flawed inductive inferences about the fluid dynamic behavior of blood outside the body.

Now, like all forensics, BPA is not useless.  There is certainly legitimate information that can be garnered from an analysis of blood patterns at a crime scene.  But, again, as with all forensics, it must be used within the bounds of what is scientifically supportable.

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Innovative Colorado DNA Initiatives Pay Off

On October 1, 2009, Colorado Attorney General John W. Suthers, announced that the state had received a $1.2 million federal grant to start a program that would seek to identify wrongful convictions through DNA testing. Today, April 30, 2012, Robert Dewey, 51, is expected to be the first person to be exonerated through the testing. He has served more than 16 years for a crime he said he never committed. A Colorado imprisoned felon is a new suspect in the case. Read about this case, reported earlier on this blog by Mark Godsey with news link here, and also here.

This exoneration is just one of the beneficial results of the Colorado Justice Review Project. Working with the Denver District Attorney’s Office, the University of Denver College of Law, the Colorado Bureau of Investigation and the Colorado Public Defender’s Office, the federally funded project has enabled review of more than 5,000 past rapes, Continue reading

Ohio Seeks to Make Exoneree Compensation More Difficult to Obtain…

Ohio Governor Kasich has submitted a bill to the Ohio General Assembly that would raise the standard of standard of proof for the wrongfully convicted to obtain compensation.  Under this new scheme, an exoneree would have to prove in a civil suit that she is innocent not by the current standard, which is “a preponderance of the evidence,” but rather, by the standard of “clear and convincing evidence.”

The Ohio Innocence Project will work hard to keep this provision from becoming law.

First, I cannot understand why the wrongful convicted are being singled out for special treatment.  It is a fundamental principle of law going back for centuries that in civil cases for monetary damages, the burden of proof is a preponderance of evidence (51% or “more likely than not”).  If the State of Ohio harms someone by breaching a contract, or causes them physical injury in an accident with a State Continue reading

Africa: Judges hold the Aces of Justice

There is no gainsaying that the quality of the bench plays a pivotal role in the fair dispensation of justice. While we rant against prosecutorial tunnel vision; bad lawyering et al, a strong and independent bench is a sine qua non. Judges ultimately decide the ‘fate’ of an accused person. We have known for a long time that the process of appointment of judges in Africa is fraught with nepotism, incompetence; of those who are handmaids and willing tools of the executive branch of government. That situation is about to change in Kenya with the sacking of 4 senior Judges.   http://www.nation.co.ke/News/politics/Four+senior+Kenyan+judges+sent+home/-/1064/1393432/-/4fsec8z/-/index.html

An independent judiciary and bench is central to the prevention of wrongful convictions and miscarriage of justice, indeed, a judge who is impervious to change, will certainly be unwilling to look at evidence, either afresh or with an open mind. I commend the lead taken by the Kenyan authorities to other African countries, particularly the Nigerian judicary that is constantly embroiled in crisis.

How Your Right to Presumption of Innocence, Can Lead to Your Wrongful Conviction: Reality v. Theory

The above title is the fulcrum of Dr. Michael Naughton’s argument in his very illuminating article, in the Irish Journal of Legal Studies. He used the United Kingdom as his case study. He formulates his argument this way:

‘ — that the presumption of innocence and the burden of proof on the prosecution to prove its case beyond a reasonable doubt act in reality against the interests of those who might be innocent at every stage of the criminal justice process. This is because the presumption, in effect, render suspects of crime passive, which simultaneously justifies minimal resources to the defence, whilst the burden places pressure on, and directs the bulk of the resources to the police and the prosecution to chip away at the presumed innocent status and construct cases from only incriminating evidence that might obtain a conviction, rendering innocent victims vulnerable to wrongful convictions’

He then goes on to say –

‘As a result, the defence side of the adversarial equation, widely thought to be the key safeguard against wrongful convictions, is largely ineffectual as it is resource poor and reliant on police and prosecution evidence that is not suitable for defending against cases constructed from such evidence’

His thesis, at first, appears to be an attempt to stand the law on its head, but the article successfully wrestles with, and strive to undermine centuries of long held legal maxim, that now appears to be, either ‘obsolete’ or, at best obscures the search for justice. Read the full article here and come to your own conclusion(s)http://www.ijls.ie/Articles/IJLS_Vol_2_Issue_1_Article_4_Naughton.pdf

Law Schools: Add Wrongful Conviction to Core Curriculum

“Like many people, I [once] accepted one of the myths,” said Jeffrey Rosen, the New Republic’s legal affairs editor and law professor at George Washington University. The Los Angeles Times called Rosen “the nation’s most widely read and influential legal commentator.” A legal book author, he is a summa cum laude graduate of Harvard College, was a Marshall Scholar at Oxford University, and is a Yale Law School graduate. One of his specialty areas is criminal procedure. Yet, he recently humbly admitted that he’d gained a new understanding about our criminal justice system, namely, that it convicts the innocent far more often then most imagine.

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